Warner v. Thomas, 2017-CA-01591-COA

• Decision Date: 19 March 2019
• Docket Number: NO. 2017-CA-01591-COA,2017-CA-01591-COA
• Citation: 281 So.3d 216
• Parties: Joni WARNER, Appellant v. Larry THOMAS, Appellee
• Court: Mississippi Court of Appeals

281 So.3d 216

Joni WARNER, Appellant

v.Larry THOMAS, Appellee

NO. 2017-CA-01591-COA

Court of Appeals of Mississippi.

March 19, 2019

ATTORNEY FOR APPELLANT: KIMBERLY WALKER NAILOR, VICKSBURG

ATTORNEY FOR APPELLEE: JAMES L. PENLEY JR., VICKSBURG

BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Joni Warner appeals the chancery court's denial of her petition for modification of a prior child-custody order, the denial of her motion to reconsider, and the denial of her motion for a new trial. Finding no error, we affirm.

FACTS

¶2. Joni Warner and Larry Thomas were never married but are the parents of the minor child, L.J.¹ On April 4, 2016, when the child was four and after the parties had ended their relationship, Warner filed a "Complaint for Order of Filiation, Support and Custody" against Thomas. At that time, Warner was living with, and had just had a child by, her fiancé, Tyrone Harris, a pipeline worker in Texas who came home infrequently. Thomas was living with his new girlfriend, and L.J. was in preschool at the time.

¶3. After a hearing on January 17, 2017, the trial court found that prior to ending their relationship and well after L.J. was born, Thomas spent his off-work hours at Warner's house until it was time for him to go home in the evening. They functioned as a family until Warner and Thomas broke up. Both were working during the week and had stability in their jobs. L.J. lived with Warner who would get him up for school and, after school, did homework with him and got him to bed. When Thomas was with the child, they would play football, practice L.J.'s letters, play games, and go to movies. The child had a good and loving relationship with both parents and was in good physical and mental health. Both parents had good support systems in place for the care of the child. After the breakup, the child spent time with Thomas at his mother's home. Thomas claimed he did not want to be "an every other weekend father."²

¶4. In its final decree on January 26, 2017, the trial court applied the Albright³ factors and awarded the parties joint legal and physical custody of the child. According to the decree, Thomas was adjudicated as L.J.'s father and the parties would have alternate weeks of physical custody of the child. Neither party appealed that decision.

¶5. Less than three months later, on April 18, 2017, Warner filed a Petition for Modification claiming a material change in circumstances that adversely affected the best interest of the child. The material change alleged was an April 2, 2017 incident that occurred after one of the minor child's basketball games. Warner claimed that Thomas attempted to assault her and ended up assaulting the minor child. She further pleaded that the municipal court of Vicksburg entered an "Ex Parte Emergency Domestic Abuse Protective Order" following this incident and later entered a Temporary Domestic Abuse Protection Order that prohibited Thomas from contacting Warner until June 14, 2017. Warner also pleaded that modification was necessary because L.J. feared his father. She asked that she be given sole physical and legal custody of the child. Thomas answered, denying these allegations.

¶6. At the hearing on the Petition for Modification, held on August 13, 2017, Thomas and Warner testified, as did each of their mothers and Tyrone Harris (Warner's fiancé). Warner testified and gave her version of the basketball incident which occurred on April 2, 2017, at the YMCA. According to her, the game was over and she had taken L.J. to the concession stand for a hot dog. She also had her baby by Tyrone with her. Thomas came over and talked to the child, telling him that it was a good game, etc. He then looked at her and said "I can't believe you got this ugly ass baby with you. You a dumb mother******." Knowing that things were turning for the worse, she tried to grab L.J.'s hand to leave; Thomas, however, took the child with him "behind what's a board," she said, "[H]e took L.J. behind the board." She then called her fiancé, Tyrone, to tell him that Thomas would not give her the child. Thomas hit the phone out of her hand. She kept trying to get the child back, and finally Thomas grabbed her hand and tried to hit her. He missed and slapped L.J. accidentally instead. L.J. began crying, and she went to find a coach. She then got L.J. back, and as they were leaving, Thomas tried to trip her.

¶7. Thomas, however, gave a different version of events. According to him, after the game, he saw Warner and L.J. and said he wanted to talk to L.J. because he had not been able to see him. L.J. was sitting down, eating his hot dog, and Thomas told him to come over to him. L.J. had no problem coming to him. Warner broke into their conversation and said they were leaving. Thomas grabbed L.J. and said he was not done talking to the child. Warner said that was too bad, snatched the child, and left. He denied attempting to strike Warner and denied hitting the child at all.

¶8. Tyrone Harris testified that he was at work when he received a call from Warner. She was crying and telling him that Thomas had taken L.J. from her and would not give him back. He heard Thomas on the phone say, "[B]itch, you'll get him back when I want you to have him back." And then the call ended.

¶9. Elizabeth Thomas, Thomas's mother, testified that she was at the YMCA that day but she did not witness the incident. Someone told her that she needed to go see about Warner and Thomas because they were arguing. By the time she got to the area, everything was over, and she only saw Warner and L.J. walking out. The child appeared to be fine with one hand holding his mother's hand and the other holding a hot dog. The child was not crying. She asked Warner what had happened, and all Warner would say was that Thomas had lost his mind and that she was going to press charges. Then they left.

¶10. No impartial witness to the event testified.

¶11. Warner did go to the municipal court in Vicksburg on April 7, 2017, and filed a "Petition for Domestic Abuse Protection Order." An ex parte emergency order was entered that same day that prohibited Thomas from going within 100 yards of Warner except for the exchange of visitation. At a hearing held on April 14, 2017, the emergency order was extended through June 14, 2017. However, Thomas was not ordered to undergo any counseling or attend anger management classes.

¶12. Testimony concerning the effect of this incident on the child was clearly partisan. Warner, her mother, and Tyrone said that since the incident, the child cries when he has to go with Thomas; however, Thomas and his mother testified that when they pick him up, the child is happy and fine. Warner and her mother testified that the child now throws tantrums and "acts out," throwing stuff. He is getting into trouble and is not happy. Warner testified that during one week when Thomas had L.J., the child got in trouble at school for saying the word "booty" and hitting people on the booty. However, the court asked Thomas if he had observed the child getting into more trouble and acting out, Thomas replied that he had not and Thomas's mother had not seen the child with a bad attitude. Again, no impartial witness, such as a teacher or counselor, testified about any change in the child's behavior.

¶13. The parties both testified that before the basketball-game incident, there were vulgar and derogatory texts exchanged between them, apparently mostly by Thomas. Thomas claimed these texts resulted from L.J.'s telling him that the fiancé, Tyrone, had whipped him and Warner had refused to confront Tyrone about it. Thomas said he learned this information when he jokingly raised a belt as if to discipline L.J., and L.J. cowered fearfully. Warner denied any such beating by Tyrone and said that L.J. had told her that Thomas told him to lie and say that Tyrone beat him.

¶14. On September 20, 2017, the trial court issued its "Order Denying Modification," reciting a number of the facts above. The trial court pointed out that there were no impartial witnesses to the basketball game incident and found no material change in circumstances adversely affecting the child. It did find, though, that the parties were not working together for the good of the child, warned that they needed to be civil to each other, and indicated that future failure to do so would result in court-ordered parenting classes.

¶15. On September 25, 2017, Warner filed a motion to reconsider and a motion for a new trial. In the motion to reconsider, Warner argued that Mississippi Code Annotated section 93-5-24(9)(a)(i) (Rev. 2013) creates a rebuttable presumption that it is not in the best interest of the child to be placed in joint custody with a parent who has a history of perpetrating family violence. She cited facts from the January 26, 2017 decree and other facts from the January hearing to support that claim and asked for findings of fact and conclusions of law pursuant to this statute. In the motion for a new trial, Warner said that she had located a witness who could provide testimony about the basketball game incident. She further claimed that Thomas was continuing to berate her. She asked for new findings of fact and conclusions of law to direct the parties how to be civil toward each other.

¶16. On October 6, 2017, the trial court denied the motion to reconsider, giving Warner the findings she asked for under section 93-5-24(9). The trial court acknowledged the domestic-abuse protective orders attached to the motion for modification as well as testimony that disputed whether the child was hurt or even slapped at the basketball game. The court found that there was no serious injury or showed a pattern of family violence, so there was no presumption raised against Thomas. With respect to the texts between them, no one testified that they were read to the child. The trial court also denied the motion for a new trial, stating that Warner had ample time before...